Issue: Employee’s demotion while on intermittent FMLA leave can result in retaliation claim

For the week of May 12, 2008

According to the 7th U.S. Circuit Court of Appeals, a school district’s bookkeeper who was demoted while taking intermittent leave to care for her elderly mother provided evidence that her leave was part of the motivation for her demotion, and therefore sufficiently raised a claim of retaliation under the FMLA. Lewis v. School District #70, et al, 7th Cir., No. 06-4435, April 17, 2008.

Debra Lewis began working as a bookkeeper and treasurer for Freeburg Community School District in Saint Clair County, Illinois in 1997. She performed her job "admirably" until 2004, when both of her parents became terminally ill. After Lewis’ father died in May of that year, Lewis began to care for her mother at home. While Lewis’ supervisor (Dr. Hawkins) was aware that she was missing work to do so, he gave permission for the absences and allowed Lewis to "work from home." However, after a few weeks of this arrangement, Lewis’ schedule began to create problems for the other School District employees, who had to rearrange their own schedules to cover Lewis’ work absences.

At a School Board meeting on June 28, 2004, Dr. Hawkins related to the Board that Lewis’ continued absences were creating difficulties for the School District. While certain Board members expressed the view that a new bookkeeper should be hired, Hawkins dissuaded them and instead, sent a letter to Lewis advising her to resume her regular work schedule. Although Lewis returned to that schedule, she again began missing work in September and October to care for her mother.

At the October Board meeting, Lewis’ absences again were discussed. This time, Hawkins also mentioned that Lewis was experiencing performance problems cause by the absences. When a Board member expressed the view that Lewis should be fired, Hawkins informed the Board that the District could face liability under the FMLA if it fired Lewis. He suggested that Lewis be offered "official" unpaid FMLA leave instead. That offer was made and accepted by Lewis. However, during the period of her intermittent leave, the District did not bring on assistance with the bookkeeping functions. Lewis continued to perform all of the functions of bookkeeper, doing the work from home and on weekends during her days of leave, but was not paid for that work.

Between October 2004 and March 2005, Hawkins was encouraged by the Board to document Lewis’ "poor performance" in order to "build a case" against her. He did so, and in March 2005, Lewis received her first and only performance evaluation from Hawkins, in which she was advised that her performance problems were a "direct result of [her] reduced hour schedule." Based on the negative review, the Board offered a choice to Lewis: either resign, or be reassigned to a teacher’s assistant position at a lower salary.

Lewis filed a lawsuit, alleging that her demotion was a result – in whole or in part – of her protected FMLA leave. While the lower court dismissed the FMLA claim on summary judgment, the Seventh Circuit reversed that decision, holding that Lewis presented sufficient evidence of an impermissible retaliatory motivation to create a genuine issue for a jury.

As part of that evidence, the Court specifically cited the District’s initial failure to inform Lewis of her right to FMLA leave, the District’s decision to hold Lewis to the standard of a full-time employee during her period of FMLA leave, and School Board members’ expressions of hostility toward Lewis’ absences.

The Court’s opinion provides a checklist for employers. First, FMLA leave should be discussed with the employee as soon as the employer is made aware that that individual is caring for a family member with a serious medical condition. Second, an employee should not be disciplined or demoted for performance issues caused by the actual FMLA leave, as to do so would negate the purpose of the Act. Third, employers should ensure that its decision makers are made fully aware of employees’ rights (and employers’ obligations) under the FMLA, and that such decision makers are trained to appropriately discuss and consider the ramifications of those rights and obligations.